Francisco Alvarado-Romero, a citizen and native of Mexico, sought protection from removal by applying for asylum, withholding of removal, protection under the Convention Against Torture, and cancellation of removal. An Immigration Judge denied these applications, and the Board of Immigration Appeals dismissed his appeal. The BIA determined that Alvarado-Romero's asylum application was untimely, his proposed particular social groups lacked social distinction and particularity, he failed to show a specific threat of torture, and his family would not suffer the exceptional hardship required for cancellation of removal. Alvarado-Romero then petitioned the Ninth Circuit for review of these decisions.
The Ninth Circuit analyzed the petition on four distinct grounds, applying the standard that arguments not specifically and distinctly raised in the opening brief are forfeited. First, regarding the asylum claim, the court held that Alvarado-Romero forfeited review because he failed to challenge the agency's determination that his application was untimely under 8 U.S.C. § 1158(a)(2)(B). Second, for the withholding of removal claim, the court found forfeiture on two fronts. The petitioner did not argue that the agency erred in finding his imputed particular social group of 'returning Mexicans from the United States' lacked social distinction or that he failed to identify a political opinion. Additionally, he forfeited review of his proposed group of 'Mexicans who want to live in peace without violence' by failing to specifically and distinctly challenge the agency's finding that this group lacked social distinction and particularity. Third, the court denied review of the Convention Against Torture claim because Alvarado-Romero did not challenge the agency's dispositive findings that he failed to establish a particularized, non-speculative threat of torture or government acquiescence. Finally, regarding cancellation of removal, the court applied the substantial evidence standard. It found no legal error in the BIA's consideration of the physical separation of the petitioner from his children. The court concluded that while the record showed some hardship, it did not compel the conclusion that the hardship was substantially different from or beyond that which would normally be expected from the deportation of an applicant with close family members.
The denial of the petition leaves the removal order against Alvarado-Romero in effect. The decision reinforces the strict procedural requirement in the Ninth Circuit that petitioners must specifically and distinctly challenge agency determinations to preserve those issues for review. For immigration practitioners, the ruling highlights that failing to address dispositive factors like timeliness or the specific elements of a particular social group can result in the forfeiture of entire claims. The temporary stay of removal remains in place until the mandate issues, but the substantive legal barriers to relief remain intact.
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